Lawyers Guide to Formulas in Deal Documents and SEC Filings

Written for lawyers at all levels of mathematical skill, this book covers the use of numbers, formulas and ratios in securities offerings, mergers and acquisitions, debt financing, venture capital, private equity, and intellectual property. The Lawyers Guide to Formulas in Deal Documents and SEC Filings provides valuable drafting advice and shows you common mistakes that can dramatically affect how much your client receives or has to pay.

The authors look closely at both the typical uses of formulas in deal documents and SEC filings and their application in less common contexts. Coverage includes: anti-dilution provisions (with an “Anti-Dilution Glossary” that simplifies even complex dilution calculations); working capital; liquidation preferences; debt financing formulas, ratios and metrics to monitor risk; earnouts; carried interest, with sample allocation, distribution and clawback provisions; and IP royalties.

Whether you are honing your expertise or simply trying to overcome numbers angst, this unique guide is your secret weapon. It will help you make sense of mathematical equations in situations ranging from the mundane to the esoteric and use them to your advantage.

CHAPTER 8Carried Interest Formulas in Private Equity Funds- 8.01 Carried Interest Allocated to the Fund Manager[1] Overview of Carried Interest[2] Allocation of Profits[3] How Is Carried Interest Calculated[4] How Is Carried Interest Paid?[5] Examples of Allocation and Distribution Formulas in Private Equity Agreements- 8.02 “Clawback” of Carried Interest[1] What Is “Clawback”?[2] When and How Is Clawback Calculated?[3] What is the Repayment Obligation?[4] Example of a Clawback Provision- 8.03 Vesting in Carried Interest[1] Alignment of Interests[2] Forfeiture or Repurchase[3] Vesting Schedules[4] Vesting in What Portion of the Carried Interest?- 8.04 Concluding Comment

Jim E. Bullock (Author of Chapter 7, “Intellectual Property Royalties”) has been in-house intellectual property and licensing counsel for global technology giants Autonomy, Sun Microsystems, and Computer Sciences Corporation. After graduating from Southern Methodist Universitys Dedman School of Law and clerking for the Honorable Carolyn Wright of the Texas Fifth District Court of Appeals, he began his legal career as an associate with the Dallas-based law firm of Winn, Beaudry & Winn, LLP. Jim is the author of numerous articles on intellectual property protections, as well as the book on intellectual property licensing, The IP Licensing Lawyer's Job: A Survival Guide.

Ross Burningham (Author of Chapter 4, “Liquidation Preferences”) is a partner at DLA Piper LLP (US), San Diego, California. He joined the Firm in 2008 and practices in the Firms Corporate and Finance Group. Mr. Burninghams practice focuses on the representation of issuers and investors in the formation and financing of emerging technology companies, as well as counseling emerging companies with respect to mergers and acquisitions, spin-offs, strategic relationships, recapitalizations, public offerings and general corporate matters. He has been counsel to companies in the biotechnology, health care services, medical device, software, hardware, telecommunications and cleantech industries. These companies range from start-ups to established public companies. Mr. Burningham holds a J.D. degree, cum laude, from the J. Reuben Clark Law School at Brigham Young University and M.Acc. and B.S. degrees in Accounting from Brigham Young University. Mr. Burningham is a member of the State Bar of California, the American Bar Association and the San Diego County Bar Association.

John J. Ferro (Author of Chapter 6, “Post-Closing Working Capital Adjustments”) is a Partner (Northeast Practice Leader – Valuation Services) at the New York Office of Grant Thornton, LLP. Mr. Ferro is an experienced financial investigator and an expert witness on valuation matters in arbitration disputes, jury trials and bankruptcy proceedings. He has served as an arbitrator in post-closing merger and acquisition disputes with claims in excess of $125 million, and has led valuation assignments concerned with businesses in 28 countries that have a market capitalization in excess of $1 billion. Mr. Ferro has valued businesses in connection with purchase price allocations, mergers and acquisitions, and litigation. A graduate of St. Francis College, (Bachelor of Science Accounting), Mr. Ferro is a Certified Public Accountant (CPA), Certified Valuation Analyst (CVA), a member of the American Institute of Certified Public Accountants, the New York Society of Certified Public Accountants, the National Association of Certified Valuation Analysts, the Association for Corporate Growth (New Jersey Chapter) and is qualified as a General Securities Representative and as a General Securities Principal with the FINRA.

Meredith Jackson (Author of Chapter 2, “Calculated Risks”) is a Partner with the Los Angeles office of Irell & Manella LLP, where she heads the debt finance practice. Meredith has been selected for inclusion in Southern California “Super Lawyers” by Los Angeles Magazine each year 2003 through 2008. Meredith is a Governor and past President of the Financial Lawyers Conference and a Fellow and Regent of the American College of Commercial Finance Lawyers. She has been Chair or Co-Chair of numerous American Bar Association subcommittees. Meredith has structured, negotiated and managed multiple billions of dollars of debt capital transactions, including syndicated credits, international loans, special-purpose loans, regulated loans, derivatives transactions, letters of credit, acquisition financings, intellectual property financings, multi-tiered intercreditor arrangements; public, private, and 144A debt placements of high yield debt, convertible debt, MTNs, exchangeable preferreds, trust originated preferreds; securitizations and other collateralized bond obligations; leveraged and synthetic leases, out-of-court debt restructurings, tender and exchange offers, recapitalizations, workouts, and prepackaged Chapter 11s. Meredith was educated at Princeton University and Hastings College of the Law. She later taught Secured Transactions as an adjunct professor at Hastings College of the Law, and has guest-lectured at the Stanford University School of Law. She has an extensive history of academic publication. For many years, Meredith served as a faculty member of the UCC Institute.

Ronald B. Moskovitz (Co-author of Chapter 8, “Carried Interest Formulas in Private Equity Funds”) is a Partner in the Business and Finance Practice Group at Morgan, Lewis & Bockius LLP. His practice has emphasized mergers, acquisitions, and corporate finance. Over 40 years, he has represented some of the San Francisco region's best-known venture capital partnerships. He has served on the Corporations and the Professional Conduct Committees of the State Bar of California and in the Business Section of the Bar Association of San Francisco. A member of the American Bar Association, Mr. Moskovitz has spoken in public forums on California corporations law (sponsored by the Legal Education Institute) and on disclosure law for investor relations and financial executives (sponsored by PR Newswire). He received his J.D., magna cum laude, from Harvard University in 1968, and his B.A., cum laude and Phi Beta Kappa, from Williams College in 1965.

Peter M. Phleger (Co-author of Chapter 8, “Carried Interest Formulas in Private Equity Funds”) is a Partner in Morgan Lewis's Business and Finance Practice. His practice focuses on the formation of private investment funds, including venture funds, fund-of-funds, pledge funds and hedge funds, as well as ongoing representation of these vehicles in their operation. He has been involved in representing funds from bil-lion-dollar venture partnerships to very small early-stage venture capital firms. He has experience with the structure, formation, governance and investing activities of private investment funds, including partnership agreement terms and conditions, and public disclosure, securities law, investor relations, and relevant tax and accounting matters. He regularly counsels clients with respect to their internal affairs relating to the operation of their funds and the relationships among the principals. Mr. Phleger earned his J.D., cum laude, from the University of San Francisco School of Law in 1996 and his B.A. from Yale University in 1985. He is admitted to practice in California.

Carla J. Garrett

Carla Garrett (Author of Chapter 1, “Securities Law Formulas” and Chapter 5, “Earnouts in Mergers & Acquisitions”) is an independent legal consultant who serves on the NASDAQ Stock Market, Inc. Listing Qualifications Hearing Panel. She is the former General Counsel and Corporate Secretary for CoStar Group, Inc., a public company that provides commercial real estate information to a national and international client base. She joined CoStar as the first attorney in 1999 and established the legal department. She spent a majority of her time on securities law and corporate governance issues, intellectual property matters, and acquisitions. Prior to joining CoStar, Ms. Garrett practiced in the Washington, D.C. office of Sullivan & Cromwell, where she was a corporate and securities attorney. Ms. Garrett also practiced at Wilson Sonsini Goodrich & Rosati in Palo Alto, California, where she practiced corporate law and advised technology companies. Ms. Garrett received a B.A. in mathematics from Vanderbilt University and her J.D. from Stanford University.

Matthew B. Swartz

Matthew B. Swartz (Editor) is a Partner in the corporate and securities group of a major law firm. Mr. Swartz advises buyers and sellers in mergers and acquisitions, issuers and investors in private financings, and issuers and underwriters in public offerings. He also provides private and public companies with general corporate counsel. He has practiced in Silicon Valley and in Southern California and, prior to becoming an attorney, worked at a privately held biotechnology company. Mr. Swartz received his B.A. from the University of California, Berkeley, and his J.D. from the University of California, Hastings College of Law. He is the author (with Daniel Lee) of The Corporate, Securities, and M & A Lawyer's Job, a Survival Guide.

Hayden J. Trubitt

Hayden Trubitt (Author of Chapter 3, Antidilution Adjustments) is a shareholder in the San Diego office of Stradling Yocca Carlson & Rauth. Previously he was a shareholder with Heller Ehrman LLP and a partner with Brobeck, Phleger & Harrison LLP. One of the leading corporate and securities lawyers in San Diego, California, he received his J.D., magna cum laude, in 1979 from Harvard Law School (where he was a Senior Editor of the Harvard Law Review), and his B.A., magna cum laude, in 1975 from Yale. Mr. Trubitt was President of the San Diego County Bar Association in 1996.

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